Good news for wolves keeps rolling out.

The Great Lakes wolves have won reprieve in federal court, preventing the Bush’s Fish and Wildlife Service’s (FWS) attempt to delist:

Court rules against U.S. in Great Lakes wolf caseAP

US District Judge Paul Friedman ruled in favor of wolf advocates who argued that the Fish and Wildlife Service can not use Distinct Population Segment’s (DPS) as tools for delisting to delist the Great Lakes wolves at this time.

FWS had argued that the ESA mandated its action given its interpretation of Congress’s revision of the term “species” within the Act to include Distinct Population Segments. Given wolves within the DPS had recovered, FWS argued, and its conflation of “species” with ‘DPS’, it was incumbent upon agency to delist.

Both parties agreed that the FWS can list populations of species using Distinct Populations Segments to help prevent a species in its entire range from incurring significant declines within a sub-population that would necessitate a broader listing across its entire range. However, the judge decided that it was too ambiguous an interpretation of the ESA for FWS to delist a healthy sub-population while that species’ entire population remains imperiled even if that same sub-population was listed via DPS.

Working to demonstrate the ambiguity of FWS’s interpretation, wolf advocates argued that because Congress did not extend the DPS tool to invertebrate species, it was extending greater value to mammals, birds and fish. If in Congress’s revision of “species” to include the DPS tool it demonstrated an intent of its inclusion to protect its heightened value for vertebrates, that showed the intent of the revision was to protect, i.e. to list species, not an intent to use the tool to remove protection.

Given FWS failed to demonstrate that its interpretation of the ESA was unambiguous, it is responsible for bringing “its experience and expertise to bear in light of competing interests at stake” (PDK Laboratories, Inc. v. DEA), a heftier burden than if it had demonstrated to the judge strict and clear compliance with the language in the first place :

The Memorandum Opinion:

On remand, the agency should bring its expertise and experience to bear on the
question of whether the ESA permits it to use the DPS tool in the fashion it has proposed. At a
minimum, the agency must explain how its interpretation of the statute conforms to the text,
structure and legislative history of the ESA; how its interpretation is consistent with judicial
interpretations of the ESA (if there are any on point); and how its interpretation serves the ESA’s
myriad policy objectives. It must also address any legitimate concerns that its interpretation
could undermine those policy objectives.

 
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About The Author

Brian Ertz

12 Responses to Great Lakes Wolves Win in Federal Court ! Keep ESA protection !

  1. avatar John says:

    I did not know of a wolf hunt or cull in the Great Lakes Region, Minnesota and Wisconsin both had their wolf populations publicly classified as non-game animals. Michigan’s DNR remained hushed on the subject of ‘private take’ of wolves.

    Strange….

  2. avatar JB says:

    I’m on the road for a conference and just heard this news. I’ll reserve judgment on the opinion until I have time to read it, but I’m skeptical this decision will have a long-lasting effect. Looking at the quote Brian posted above, it appears the judge “punted.”

    In any case, the facts in MN, MI, and WI are very different from the West. The wolf population is healthy, relatively stable, and wolves occupy nearly all of the viable habitat in this region. Moreover, the states have responsible management plans, not at all like the plans put forth by Wyoming and Idaho.

    It will be interesting to see where we go from here…

  3. avatar catbestland says:

    It certainly does seem that wolf advocates have had a lot to be thankful for recently. I can’t help but feel that it is fourms like this blog that have allowed individuals to get involved and actually make a difference through all the networking efforts that take place here. So many people are concerned but don’t know what to do. We get great ideas on whose cages to rattle here. Yay Ralph and your blog.!!!

  4. avatar pc says:

    This is bad news if true. I thought MN, MI and WI all had good sound mgt plans that fostered healthy wolf populations. Their will always be those against, but is this a situation where we are not getting accurate information? It sounds like lots of groups are involved so you would not think that is the case. If the Feds have to re-list in those states then so be it. In the end, that is a victory for the wrong side.

  5. avatar Brian Ertz says:

    pc,

    with this case it looks as if the state mgt plans were less at issue than the apparently less-than-legal procedure FWS used to delist. FWS apparently didn’t believe it needed to justify the delisting beyond claiming that it’s interpretation of a DPS could be reasonably inferred as the “plain meaning” of the Act. To use that standard given the plaintiffs successfully arguing that there are reasonable alternative interpretations/intent would dilute the delisting process and in effect, weaken the ESA with regard to a myriad of species.

    Instead, because the FWS did not reach the bar/convince the judge that it’s interpretation was unequivocal, it must justify its decision in a more thorough manner. FWS skipped that and so the judge is giving FWS another opportunity at bat.

    we know that the political situation in the Great Lakes is much more favorable to wolves than in the west – but if judges were to grant sloppy/less-than-legal rulings because of such things, the importance of that sound process would diminish.

    FWS needs to tighten up its act.

    Also, the judge had several arguments from the plaintiffs with which to decide. He did not even evaluate the others because this argument was enough to remand the delisting rule by itself.

  6. Brian is right. This case is about “malapportionment” of DPSs (drawing boundaries to accomplish political rather than biological goals)

  7. avatar JB says:

    Brian, Ralph:

    While I agree that it is pretty clear the FWS is using DPS policy to delist and that they should be forced to defend this decision, I worry that this will be used as “evidence” that the endangered species act does not work. In fact, I’ve already heard this view expressed by some managers.

    Let me be clear, I think conservation groups are right about FWS’s intentions and what Brian called “sloppy” work. But these “technicalities” will be lost on the vast majority of people (even some smart enough to know better) who will hold up this case as proof that the ESA needs reform. ESA reforms–even by a Democratic Congress–could end up significantly weakening the Act and its ability to protect threatened and endangered species.

  8. avatar Brian Ertz says:

    JB,

    How on Earth could this decision be construed such that the ESA does not work ? It’s Bush’s FWS that didn’t do the work

    I’m sorry, but calls for reform of the ESA will always be made – that’s a part of the struggle… but the “Don’t use it to don’t lose it” mentality is just as detrimental to species protection – it’s de facto reform. What good is a law that has advocates who are too afraid to enforce it ?

    Let me be clear JB, I agree that the ESA is vulnerable – but that vulnerability seems to me to be the result of missing investment in communications, antagonists have done a better job at framing, and political realms more than the qualified indictment of the Act itself. The ESA has been on the defense – and postures suggestive that we ‘don’t use it so we don’t lose it’ are just more of the same – in fact, they feed into the narrative of reform. I honestly believe that the tide is changing in this regard and that the potential for political assaults to the Act are waning. We’ll see – but either way, let’s not live in this shadow of fear about the reform of the ESA, is it wise to let that fear short the species before political meddling has a chance to ?

  9. avatar JB says:

    Brian,

    I don’t see anything in your response that I disagree with. However, I admit that I still live in fear of ESA reform; more importantly, I fear how this decision will be interpreted by the masses, who simply don’t have the time or compunction to truly investigate the matter. I hope you’re right about attacks on the Act waning–however, I’m not sure I believe it. We’ll see…

  10. avatar Maska says:

    The first step in protecting the ESA is to stop framing proposed changes that would effectively gut the law as “reform.” The public sees “reform” as a positive thing. If we want to keep the ESA strong and effective, we ought to immediately vow never to refer to destructive changes as reform, but rather as what they really are–an effort to gut, weaken, or destroy the most comprehensive and effective endangered species and ecosystem protection law in the world.

    If ESA opponents talk about reforming the act, we should never, never buy into their frame, but shift the debate to protecting the act or strengthening it.

  11. avatar JB says:

    Brian said: “How on Earth could this decision be construed such that the ESA does not work ? It’s Bush’s FWS that didn’t do the work …”

    Back at home today and wanted to revisit this now that I’ve had some time…

    There has been a concerted effort to gut (thank’s Maska) the ESA since the Republicans took charge of Congress during the midterm elections of 1994. I believe that this was due to (in large part) the spotted owl controversy (critical habitat designated in 1992) the gray wolf controversy (non-essential YNP population established in 1994, reintroductions began a year later) and the Supreme Court’s 1995 ruling that the modification of habitat could constitute harm under the ESA–which did not sit well with property rights activists.

    After the midterm elections of ’94 Congress instituted a moratorium on new species listings-passed as a rider on an emergency appropriations bill in 1995– that was lifted by executive order from Clinton in 1996. Following these actions, Bruce Babbitt instituted a series of administrative reforms (e.g. Conservation Agreements) that were supposed to allow conservation without listing species, or in his words “save” the ESA. Species listings have dropped every since. Under Reagan and Bush I, we listed approximately 44 species per year, under Clinton it was 66, under Bush II we’re averaging just over 8 species per year.

    Note, the Bush administration has done everything in its power to circumvent, undermine, and discredit the ESA and the FWS (starting with the appointment of Gale Norton to the head of Interior). However, we need to remember that this campaign began with Bruce Babbitt and Bill Clinton.

    To the point: The vast majority of people are not aware of these facts. For many, the inability of FWS to remove a recovered population in the Great Lakes (it is recovered) will simply offer more “proof” that the ESA is not effective–they will see this as a failing of the Act, NOT the agency charged with administering it.

    My worry is that this series of actions is causing people to believe that the ESA isn’t working, making them more receptive to so-called “reforms”. Of course, this is exactly what the Bush Administration (and many Republicans) have wanted.

  12. avatar RT says:

    Putting the wolf back on the fed endanged list may sound good but from my experiences as a WDNR wolf volunteer tracker I am dissapointed. Wisc has a very active and sound wolf management plan and now this recent move has set it back. There are many concerns that the state was addressing such as problem wolves for one and how to manage wolves around and near farms. I think the state should have more control over its wolf populations in order to work on existing concerns. The state has a sound management program and now they have to start all over again.

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